The unfairness of a Fairness Doctrine

That the Democrats are keen to crack down on conservative talk radio -- crack down on free speech they don't like, that is -- is now impossible to deny.

Two approaches are being contemplated. The one getting the most attention involves creating a new Fairness Doctrine. The old doctrine was a Federal Communications Commission regulation, codified in the late 1940s, that required radio and television broadcasters to provide airtime to opposing viewpoints and to cover issues of concern to their communities. The FCC, encouraged by the Reagan administration, junked the doctrine 22 years ago, rightly recognizing that the rule wasn't so much mandating fairness as imposing a government-backed curb on free expression.

But now, leading Democrats have been openly urging its resuscitation. Though the new doctrine would apply to broadcast television as well, the Democrats' real target is AM radio, where opinion is open and vociferous and where right-of-center talk shows dominate ratings -- the one medium in which conservatives and libertarians have an advantage.

"You either ought to have the Fairness Doctrine or we ought to have more balance on the other side," Bill Clinton argued the other day, "because essentially there's always been a lot of big money to support the ... talk shows." And Sen. Debbie Stabenow (D-Mich.) told liberal radio host Bill Press, "I think it's absolutely time to pass a [fairness] standard." Stabenow promised congressional hearings by the end of the year.

Although the Obama administration has said it is not inclined to support a new Fairness Doctrine, other top Democrats who have endorsed, or at least seemed sympathetic to, the idea include congressional leaders Nancy Pelosi and Harry Reid as well as Sens. Tom Harkin and John Kerry (who blamed his loss in 2004 on the regulation's absence).

But here's the reality: A new Fairness Doctrine, which could be imposed either by legislation or through FCC rule changes, wouldn't achieve more balance. Rather, it would obliterate political talk radio. If a station ran a popular conservative show -- say, Hugh Hewitt's -- it would face pressure to run a liberal alternative, even though almost all left-leaning efforts to date have failed to capture either listeners or advertising revenue.

Now imagine all the lawyers that stations would have to hire to meet the new requirements, not to mention the burden involved in measuring and reporting just how much time was devoted to this topic or that. Many radio executives, already fighting for profits in a world of intense competition, would find the expense unsupportable and switch formats to sports or entertainment. Some might get out of the business entirely.

To get a sense of what a new Fairness Doctrine would do to talk radio, remember what the AM dial was like when the doctrine was in place. In 1980, there were at most a few hundred stations that broadcast any kind of talk radio nationwide. Today, more than 1,500 stations do.

The Obama administration may say that it doesn't back a new Fairness Doctrine, but it has suggested it might support another reform, called "localism," which should also worry defenders of media freedom.

Localism would impose greater "local accountability" on broadcasters -- that is, it would force stations to carry more local programming. Localism, as sketched out in a recent FCC report, also could require stations to set up permanent community advisory boards (including "underserved community segments") that would have to be regularly consulted on "community needs and issues."

This measure -- a kind of community organizing applied to the airwaves -- could complicate life for national syndicators like Salem Radio, which make conservative and Christian shows available from coast to coast. (The regulation also would impede liberal syndicators, though liberals are fewer and far less influential in the world of talk radio.) As a candidate, Obama supported both localism and the idea of relicensing stations every two years, rather than eight, as is currently the case -- which would make the new monitors a constant worry for stations.

Localism is wildly impractical. How would board membership be decided? Would liberals sit on the board of a conservative station broadcasting in an urban area? Or would, say, an Islamic community leader sit on the board of a Christian station that broadcast in an area with a large Muslim population? And what kind of power would these FCC-mandated boards wield? Would stations be able to reject their advice without jeopardizing their licenses? What seems all too likely is that groups of professional activists would colonize these community panels and demand that their preferred issues be covered.

The idea is as philosophically misguided as the Fairness Doctrine. After all, stations already serve their communities -- their listeners and advertisers. If they don't serve them, they go out of business. Local-content shows flourish if, and only if, they can win an audience.

By what right does the government tell listeners what they can or can't listen to when it comes to political speech? The upshot of enforced localism likely would be similar to that of a new Fairness Doctrine: a diminished presence of conservative voices as broadcasters shift formats or get out of the business entirely.

All this is blatantly unconstitutional. The 1st Amendment says Congress must make no law that abridges freedom of speech or the press. Imagine the outcry if Washington bureaucrats began regulating or "advising," say, The Times for fairness or to increase local content. Unfortunately, the Supreme Court has long applied different standards to airwaves and print, claiming that the scarcity of broadcast spectrum justifies government oversight.

Whether or not that contention was ever true, it is absurd in our era of satellite radio, cable television and myriad websites.

One hopes, then, that the judiciary will stop the Democrats before they silence their most energetic, and effective, critics.

Brian C. Anderson is the editor of City Journal and the coauthor, with Adam Thierer, of "A Manifesto for Media Freedom."